345 F.

2d 165

Thomas GOTTONE, Appellant,

v.
UNITED STATES of America, Appellee.
No. 7955.

United States Court of Appeals Tenth Circuit.

May 10, 1965.

Stanley L. Drexler, Denver, Colo. (Lawrence G. Empey, Denver, Colo.,

was with him on the brief), for appellant.
David I. Shedroff, Asst. U.S. Atty. (Lawrence M. Henry, U.S. Atty., was
with him on the brief), for appellee.
Before MURRAH, Chief Judge, and LEWIS and SETH, Circuit Judges.
LEWIS, Circuit Judge.

This is an independent proceeding filed by motion under Rule 41(e),

Fed.R.Crim.P., wherein the apepllantmovant sought to suppress and have
returned to him certain papers and materials taken from his person, automobile
and home by agents of the United States. Appellant is not under arrest nor is an
information or indictment outstanding against him. Since the motion is not
made in nor dependent upon a case in esse, the District Court's denial of such
motion is an appealable order, Go-Bart Importing Co. v. United States, 282
U.S. 344, 356, 51 S.Ct. 153, 75 L.Ed. 374, and within the exception set forth in
Di Bella v. United States, 369 U.S. 121, 131-132, 82 S.Ct. 654, 7 L.Ed.2d 614.

Appellant does not hold a wagering stamp nor is he registered as provided for in
section 4412, Internal Revenue Code, 1954. On August 28, 1964, agents of the
Internal Revenue Service applied for and were granted Commissioner's search
warrants authorizing the search of appellant's person, automobile and home for
'bookmaking records and wagering paraphernalia consisting of memoranda of
wagers made, bet slips, account sheets or books relating to wagers, bettors' code
identification list; recap sheet or sheets, schedules of sporting events on which
point spreads (the line) are recorded, and money used in or derived from a

bookmaking operation which are, have been, and will be used in violation of
Sections 4401, 4411, 4412, 7201, 7203 of the Internal Revenue Code of 1954.'
The validity of the warrants is not questioned and appellant's sole contention is
that the articles seized are private papers and not instrumentalities of crime. In
other words, appellant asserts that the seizure resulting from the lawful search
exceeded the authority of the warrants and was thus unreasonable and
constitutionally prohibited. There is no doubt but that the objects sought for and
described in the warrant can constitute instrumentalities of crime (gambling
paraphernalia), United States v. Clancy, 7 Cir., 276 F.2d 617, 629-630, reversed
on other grounds, 365 U.S. 312, 81 S.Ct. 645, 5 L.Ed.2d 574; see also Harris v.
United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, and our inquiry is
thus whether the materials discovered and seized fall within the authority of the
warrant or result from and are the fruit of an exploratory search prohibited
either with or without a warrant. United States v. Lefkowitz, 285 U.S. 452, 52
S.Ct. 420, 76 L.Ed. 877.
3

Without describing in detail each of the exhibits which constitute the papers
and articles seized it is sufficient to state that included therein is $98 in cash
taken from appellant's person, lists of names and addresses with unexplained
notations thereon, race track programs and results, and numerous slips of paper
showing such notations as 'Phils. 7/10 50,' 'Minnesota-13/20 75,' 'Sox (E) 30.' In
support of his motion for the return of the property, appellant testified that none
of the seized articles were used by him as instruments of accepting wagers.
However, he refused to submit to cross examination upon his statements
choosing, rather, to seek the shelter of the Fifth Amendment. Under such
circumstances we think his testimony has no probative value and does not aid
in determining the nature of the seized papers nor in sustaining his burden of
showing a right to the return of the property.

Nor can we say, as a matter of law, that the seized papers are not
instrumentalities of crime or are not within the specifics of the warrant. 1 It is
true that a list of names and addresses may be completely innocuous but such
list, accompanied by unexplained symbols, may be a betting list; and certain it
is that when such a list is found together with many memoranda such as 'Phils.
7/10 50' which give rise to inferences of odds and wagers on a sporting event,
the likelihood that such list is a simple private paper is lessened. The trial court
specifically found from the totality of circumstances that the papers were, as a
matter of fact, gambling paraphernalia, and we will not upset that finding unless
it is clearly erroneous or to prevent manifest injustice. This is not such a case.
Compare Weed v. United States, 10 Cir., 340 F.2d 827, 828, with, Murray v.
United States, 10 Cir., 333 F.2d 409, 412; vacated on other grounds, 380 U.S.
527, 85 S.Ct. 1345, 14 L.Ed.2d 266.

The judgment is affirmed.2

Although the trial court found the materials to be 'bookkeeping records and/or
wagering paraphernalia' the government now concedes that the 'required
records' doctrine is not applicable to the case at bar. Compare Shapiro v. United
States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787

Although we entertain considerable doubt that the $98 taken from appellant's
person can be categorically lumped with the other seized property we are not
asked to give consideration to this aspect of the case either in brief or argument.
Appellant's counsel stated, upon inquiry, that his interest in result was limited to
the lists of names and addresses